With elections just around the corner, it is important for California employers to understand just what potentially could be considered a “concerted activity” under Section 7 of the National Labor Relations Act (NLRA). The reach of just what is protected may come as a surprise to many employers. Indeed, a US court [Second Circuit] recently affirmed the National Labor Relations Board’s (Board) ruling that a Facebook “like” can be such an activity.
Employees covered under the NLRA have the right to join together to improve their wages and working conditions, with or without a union. Specifically, according to the Board, employees can engage in “concerted activity”, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
An employee does not have free reign to criticize or condemn an employer, however. Employee rights under Section 7 must be balanced against the employer’s interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business. An employee’s speech may lose the protection of the Act if it is sufficiently disloyal or defamatory. In the age of social media, when employees are regularly taking to Facebook, Twitter, Snapchat, etc… to express their dissatisfaction with their working conditions, this balance between employer and employee is 
becoming increasingly precarious.
In the above-mentioned case, an employee’s Facebook activity was deemed to be protected concerted activity because “the discussion concerned workplace complaints about tax liabilities” (i.e., discussion of “terms and conditions of employment” such as wages, policies, or employees’ treatment in the workplace) and the conduct was not so disloyal or defamatory that it lost protection under the Act.
Could an employee’s political beliefs, which may be in direct contrast with the business’s stance on an issue, become a potential area of liability thanks to social media?
Potentially. It is increasingly clear that employers must exercise caution in controlling and responding to employee social media activity. It is crucial that employers review employee handbooks, specifically all policies relating to internet use and those that could be seen as prohibiting employees from engaging in “disrespectful,” “inappropriate,” or “rude” conduct towards the employer or management, absent clear clarification or context. Under the NLRB, such policies may be construed as prohibitive of protected concerted criticism of the employer.
Given the ever-changing nature of this area of the law, it would be wise for employers to work closely with experienced legal counsel to ensure policies and employment actions relating to employee social media activity could not potentially run afoul of employee rights.
For more information on protected activities and/or to discuss your business’s stance on related issues, contact business attorney Drew E. Pomerance today.
